BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20120004738 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests the highest grade in which he satisfactorily served for the purpose of computation of disability retirement pay be determined to be sergeant/pay grade E-5.

2.  The applicant states the highest grade in which he satisfactorily served was sergeant/pay grade E-5.  The Army Grade Determination Review Board (AGDRB) determined his grade upon separation would not be the highest grade he attained.

3.  The applicant provides the AGDRB findings dated 28 February 2012.

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army on 1 August 2005 and he immediately reenlisted on 25 June 2009.  He was awarded military occupational specialty 
42F (Human Resources Information Systems Management Specialist).  He was promoted to sergeant/pay grade E-5 on 1 May 2010.

2.  He was formally counseled on four occasions for failing to go at the prescribed time to his appointed place of duty during the period from 22 October 2010 to 2 February 2011.  He was also formally counseled concerning his conduct during his charge of quarters (CQ) duty on 11 January 2011.  

3.  On 2 February 2011, he was formally counseled concerning his display of a pattern of misconduct and that it was unacceptable and would not go unpunished.  He was advised he was being recommended for nonjudicial punishment (NJP).

4.  On 11 February 2011, he accepted NJP for:

* four specifications of failing to go at the time prescribed to his appointed place of duty
* going from his appointed place of duty, CQ duty

His punishment included reduction to specialist/pay grade E-4.

5.  He appealed his NJP and submitted additional matters.  He stated he left the CQ desk from 0200 to 0620 to take his medication (Percocet, as prescribed by his dentist).  His runner was still at the desk and had an alert roster to notify him in the event of an emergency.  He thought it would be unprofessional as a noncommissioned officer to have been intoxicated or asleep at the CQ desk.  He stated the act of leaving and alternating between the CQ and the runner was commonly practiced Army-wide.

6.  His appeal was denied.

7.  On 1 November 2011, he accepted NJP for:

* wrongfully making inappropriate sexual comments, on divers occasions, to two female Soldiers, thereby creating an offensive work environment
* engaging in sexual contact with Private First Class (PFC) B__n by kissing her on the buttocks through the pants
* unlawfully kissing PFC B__n on the neck twice with his lips
* assaulting Sergeant (SGT) B___k by attempting to embrace her
* unlawfully embracing PFC B__n with his arms

His punishment included reduction to PFC.

8.  He indicated he did not wish to appeal.  However, he did submit a statement, dated 4 November 2011.  He stated his relationship with SGT B___k was of a friendship nature since mid-June; however, like all friendships there was always a period of discontent.  During a period of discontent the accusation of sexual harassment was brought up to the chain of command.  He stated the alleged sexual harassment claim from PFC B__n never took place and was made strictly out of spite due to his laughing at her about a haircut.

9.  On 7 February 2012, he submitted a request to the AGDRB to be separated from the Army at the highest grade he held, SGT.  He believed that his separation rank from the Army should be based on his entire military service rather than foolish mistakes involving personal issues with others and misconstrued judgment calls.

10.  On 17 February 2010, the U.S. Army Physical Disability Agency (USAPDA) submitted a request to the AGDRB to determine the applicant's highest grade satisfactorily served for the purpose of computation of retirement or separation pay.

11.  On 27 February 2010, the AGDRB reviewed his official military personnel file and the Physical Evaluation Board Proceedings, including his NJP while in pay grade E-5 and his NJP in pay grade E-4.  The AGDRB determined the highest grade in which he served satisfactorily for the purpose of computation of disability retirement/separation pay is his pay grade on the date of separation.

12.  Army Regulation 15-80 establishes policies, procedures, and responsibilities of the AGDRB.  

	a.  Chapter 1, paragraph 6a states the AGDRB will review cases and determine the highest grade in which a Soldier has served satisfactorily for purposes of service/physical disability retirement, computation of retired pay, or separation for physical disability.

	b.  Paragraph 2-4 outlines grade determination considerations.  It states that service in a higher grade will normally be considered unsatisfactory if reversion to a lower grade was expressly for prejudice or cause; owing to misconduct; caused by nonjudicial punishment pursuant to NJP; or the result of the sentence of a court-martial.  It also states that service will be considered unsatisfactory if there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory. 

13.  Title 10 of the United States Code, section 1372 provides the legal authority for the grade to be awarded to members retiring for physical disability.  It states, in pertinent part, that at the time any member of an armed force who is retired for physical disability is entitled to a grade equivalent to the highest of the following: the grade in which he is serving on the date when his name is placed on the Retired List; the highest grade in which he served satisfactorily; the grade to which he would have been promoted had it not been for the physical disability that resulted in retirement.


DISCUSSION AND CONCLUSIONS:

1.  Service is normally considered unsatisfactory when reversion to a lower grade is the result of NJP.  He was reduced from sergeant/pay grade E-5 as a result of NJP and he committed the offenses while he held the rank of sergeant.  He was reduced from specialist/pay grade E-4 as a result of NJP and he committed the offenses while he held the rank of specialist.  Therefore, his service in both of these ranks was unsatisfactory.

2.  The evidence indicates he is being processed through the Physical Disability Evaluation System.  However, there is no evidence he has been separated at this time.  Therefore, the highest grade in which he will have served satisfactorily for the purpose of computation of disability retirement/separation pay is the grade which he holds on the date of his separation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X__  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   X_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120004738



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ABCMR Record of Proceedings (cont)                                         AR20120004738



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